Construction Law, Costs and Contemporary Developments: Drawing the Threads Together

A Festschrift for Lord Justice Jackson

Julian Bailey, Julian Bailey

• Publisher: Hart Publishing
• Year: 2018
• ISBN:
  9781509919956
• Edition: 1
• Topic: Law
• Subtopic: Construction Law
• Index: Law

Lord Justice Jackson's retirement in March 2018 concluded a career of almost 20 years on the bench. His judicial career has seen a remarkable transformation of construction law, construction law litigation and the litigation landscape more generally. Drawing the Threads Together is a Festschrift which considers many of the important developments in these areas during the Jackson era. The Festschrift discusses most of the leading construction cases decided by Lord Justice Jackson, with subject matter including statutory adjudication, fitness for purpose obligations, consideration, delays and extensions of time, liquidated damages, time bar provisions, the prevention principle, neighbour rights, limitation clauses, negligence, good faith, bonds and guarantees and concurrent duties of care. It also includes a discussion of the background to the Jackson Review of Civil Litigation Costs (2009–2010) and its impact on litigation, as well as considering the development of the Technology and Construction Court during and subsequent to Mr Justice Jackson's tenure as judge in charge of that court.

PART I

Introduction

1

A Judicial Career of Many Parts

JULIAN BAILEY

I.Introduction

The focus of this Festschrift is upon three areas of the law in which Lord Justice Jackson¹ has made a substantial contribution, being:

•the development of the Technology and Construction Court (TCC);

•civil litigation costs, including by recommending measures to reform the legal system of England & Wales to ensure that litigation is cost effective; and

•the development of construction law.

This chapter discusses those matters, as well as the man for whom this Festschrift has been written.

There is always a risk that a biographical exposition may read as an extended entry in Who’s Who or Wikipedia, and in some respects the backgrounds and paths to the bench for most senior judges are tessellated with familiar fact patterns. The traditional route of university, call to the bar, taking silk and (after a few outings as a Recorder or a Deputy High Court Judge) appointment to the High Court (and, for some, upwards) makes for a career of great distinction, but not necessarily one that warrants or necessitates any special recognition from one’s colleagues or members of a profession. Something more is needed, and I believe we find it here with Lord Justice Jackson.

What follows is intended to provide some details and vignettes of the man, his background, and his progression to the High Court bench and then to the Court of Appeal. Interwoven in this are aspects of his career, first at the bar, and more predominantly when on the bench, which highlight key areas of law and legal developments in which he was involved, usually at the forefront.

II.School Days

Rupert Jackson’s school days were spent at Christ’s Hospital, in West Sussex.² One of his contemporaries at Christ’s Hospital was Christopher Ennis, who would go on to become a well-known quantity surveying expert and Chairman of the Society of Construction Law (UK). Mr Ennis shared this reflection with me: ‘Above all I remember his kindness, approachability and civility to all, young and old … In many ways he has hardly changed, and high office has not made him any less approachable and personable’.

It was perhaps these lifelong virtues – including his humility, good humour and generous spirit – that endeared him to fellow students and later in life to professional colleagues, clients and counsel appearing before him in court.

III.University and Early Days at the Bar

In keeping with the Nazarene nomenclature, education at Christ’s Hospital was followed by four years at Jesus College, Cambridge (1967–1971), where he studied classics (graduating with a first) and law (graduating with a 2:1). At Cambridge, Rupert Jackson met someone who would become his lifelong friend and collaborator: one John Powell. Jackson and Powell were both involved with the Cambridge Union, with Rupert Jackson becoming President of the Cambridge Union in Easter 1971.³ His immediate successor as President was Ariadnē-Anna Stasinopoúlou, now better known by her married name of Arianna Huffington, of Huffington Post fame. Though he knew her well at university, their paths diverged thereafter, with Ms Stasinopoúlou pursuing a career in journalism and music, whereas Rupert Jackson entered the less burnished world of the law.

Rupert Jackson was called to the bar in 1972, at the Middle Temple. After pupillage at the chambers of Ralph Gibson QC,⁴ he took up tenancy at those chambers in 1973, based at Crown Office Row, Temple. In 1974, Rupert Jackson’s friend from Cambridge, John Powell, also joined chambers as a tenant, and some eight years later they would publish the book⁵ which made their names in the law.

The urge to write was evidently present from the earliest days of Rupert Jackson’s career at the bar, if not before.⁶ Three contributions from this time are extant, and bear brief mention to bring out the varied interests of the young legal mind.

A case note from 1973 ‘Can Clubs Discriminate?’⁷ considered section 2(1) of the Race Relations Act 1968, which made it unlawful ‘for any person concerned with the provision to the public or a section of the public … of any goods, facilities or services to discriminate against any person seeking to obtain those goods, facilities or services’ on the basis of the latter’s ‘colour, race or ethnic or national origins’. The case in question⁸ concerned an application by a Mr Shah, a Conservative of Indian origin, to join the East Ham South Conservative Club. Mr Shah’s application to join the club had been rejected due to his colour. The club’s defence – which succeeded in the House of Lords – was that section 2(1) did not apply to it because, as a private club, it was not providing goods, facilities or services to the public.⁹ Unsurprisingly, Rupert Jackson’s note in the Modern Law Review was unsupportive of this outcome.¹⁰

In the same year, Rupert Jackson authored a ‘review of reviews’ in the journal Quis Custodiet?¹¹ of the article ‘Civilised Violence’ by Friar Thomas Gilby OP,¹² being a meditation on the causes of and possible justifications for violence in societies, including violence by and against the state. Rupert Jackson’s review of Friar Gilby’s pamphlet concluded in slightly withering terms: ‘The moral force of law and the legitimacy of revolution is a vast subject, upon which Mr Gilby could only touch briefly at the end of his article. One hopes he will develop it in the future’.

Two years later in the Modern Law Review appeared a book review of ‘Who becomes delinquent?’,¹³ a study based on data compiled over 10 years of 411 delinquent children from a working class area of London. As noted in the book review, the data gathered revealed that ‘[t]he hard core juvenile recidivists usually come from certainly clearly recognisable home situations.’ The review also recommended that ‘[o]ur community, it is suggested, should devote substantially more of its resources’ to intervening to ensure that children in those recognisable situations were not led down some inexorable path to perdition.

IV.Development at the Bar

The early years of Rupert Jackson’s career at the bar were typical for the time. His practice was a general one, involving criminal cases in the Magistrates’ Courts and Crown Courts, civil and family cases in the County Courts, employment cases before industrial tribunals (now called Employment Tribunals), periodic forays into the High Court, some education cases before various tribunals, and occasional ventures into the Court of Appeal.

Early reported cases of his included a solicitors’ disciplinary case¹⁴ and a social security appeal,¹⁵ both of which saw him appear before Lord Denning MR in his final year as a judge. A variety of other cases ensued, including a prosecution concerning an unlicensed vehicle,¹⁶ and a case about a fire at a fish-and-chip shop.¹⁷

However, it was only natural that Rupert Jackson’s practice would develop in his nascent area of specialisation – professional negligence. Not only did his practice grow rapidly, but he quickly became the leader at the professional negligence bar, taking silk in 1987. The development of a professional negligence practice stemmed from early and consistent briefs from firms of solicitors who were usually defending such claims, often on behalf of insurers. His practice, and that of his chambers, flourished. This growth and success saw both Rupert Jackson and John Powell become heads of chambers in the 1990s, and the chambers grew and moved to their present location at 4 New Square in Lincoln’s Inn.

Inevitably, the work of a sought-after barrister leaves an indelible record in the judgments of the courts in which he or she has appeared. Even a brief survey of the case law from the 1980s and 1990s in the construction or professional negligence fields will turn up Rupert Jackson’s name with regularity. Some of the notable cases in which he appeared as counsel during this period include the following:

•Northern Regional Health Authority v Derek Crouch Construction Co Ltd,¹⁸ a controversial Court of Appeal decision on the reviewability of architects’ certificates;¹⁹

•London Borough of Merton v Leach,²⁰ a landmark case on the duties of contract administrators in carrying out their functions under construction and engineering contracts;

•Eagle Star Insurance Company Ltd v National Westminster Finance Australia Ltd,²¹ being one of the last Privy Council appeals from Australia, concerning a valuable stallion named ‘Asian Beau’ that died after bouts of colic;

•Anglian Water Authority v RDL Contracting Ltd,²² which considered the ability of a contract administrator to delegate its functions;

•Mercers v New Hampshire Insurance Co Ltd,²³ on the interpretation and operation of an advance payment guarantee;

•Clark Boyce v Mouat,²⁴ a New Zealand appeal to the Privy Council concerning conflicts of interest affecting solicitors in that country;

•Machin v Adams,²⁵ on whether an architect assumed responsibility in negligence to a third party who relied upon the architect’s ‘letter of comfort’ that works had been completed satisfactorily;

•Stanton v Callaghan,²⁶ on the immunity from suit of expert witnesses;²⁷ and

•Arthur JS Hall & Co v Simons,²⁸ in the Court of Appeal, on the immunity from suit of advocates.

As if these and other cases were not sufficient to occupy his waking hours, Rupert Jackson added to his workload considerably through wading into the world of legal publications.

V.Jackson & Powell

Much of the early and rapid success that Rupert Jackson found at the bar arose from the publication, in 1982, of Professional Negligence, co-authored with his friend John Powell.

The rationale for such a book was self-evident to its authors and indeed to the community of English lawyers: there was a need for such a book. Much had been written in other countries, especially the United States,²⁹ on the subject-matter, but there was no contemporary English text that addressed this evolving and burgeoning area of law. This was not to say that professional negligence was new territory in English law. Almost 30 years before Professional Negligence was first published, there had been a book of the same title authored by JP Eddy QC,³⁰ but this was long out of print, and of limited use, given that it pre-dated the landmark case of Hedley Byrne & Co Ltd v Heller & Partners Ltd,³¹ let alone subsequent authorities. No doubt Mr Eddy QC’s monograph served its purpose in the 1950s, but by the 1980s any attempts to rely upon it would have been as fruitful as using a 1950s road map of Buckinghamshire to navigate the grid roads of Milton Keynes.

Rupert Jackson and John Powell’s monograph quickly cornered the professional negligence market, and went into subsequent editions to meet the ongoing demand for updated texts in this important area. ‘Jackson & Powell’, as it is universally known, was (and is) the go-to text on professional negligence. Today, some 36 years after it was first published, Jackson & Powell is in its eighth edition, published in 2016. Its title has changed from ‘Professional Negligence’ to ‘Professional Liability’, as a subtle but important shift of emphasis to recognise that, for professional persons, liability in their business activities does not arise purely in tort, but also under contract, statute and occasionally for unjust enrichment. And whereas the first edition of the book consisted of 344 pages of text, prepared by its industrious authors alone, the lucubratory eighth edition expands to 1,465 pages, has two general editors³² and 26 editors, with Lord Justice Jackson himself contributing as a ‘consultant editor’.³³ The chapter on ‘construction professionals’ alone (chapter 9) runs to 169 pages.

This exponential growth of the text in the book and the number of contributors to it reflects at least two things. First, it evidences the rapid growth of professional negligence as a specialist area of law since 1982. Indeed, most of the cases referred to in the eighth edition of Jackson & Powell post-date the publication of the first edition of the book. Se...